Brady and the New Orleans DA: Another look

Posted Mon, June 13th, 2011 5:12 pm by Lyle Denniston

UPDATED 10:48 p.m. to revise the sequence of timing in the two cases.

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Just weeks after the Supreme Court divided deeply over the tactics of prosecutors in New Orleans, the Justices on Monday decided to take another look, adding a new case claiming repeated violations of those prosecutors’ duty to share information that would help defense lawyers. Public defender lawyers, in the new case, aimed strong complaints at the District Attorney’s office in Orleans Parish, contending that it has “a well-documented history of hiding…from defense counsel” evidence of potential aid to the defense. That office, they contended, has not taken seriously prior orders from the Supreme Court to change its ways.

It may not be a coincidence that the new case, Smith v. Louisiana (docket 10-8145), has been developing at the Court even as the Justices were working on the case of Connick v. Thompson (09-571), the case decided on a 5-4 split on March 29, absolving the New Orleans DA of complaints for failing to train prosecutors about their obligations under the Court’s 1963 precedent in Brady v. Maryland. In Brady, the Court decided that it was unconstitutional for prosecutors to suppress an accomplice’s confession. It established the basic obligation of prosecutors to share with defense counsel any “exculpatory” (that is, favorable) evidence, if that evidence bore on guilt or innocence.

Brady violations were also directly at issue in the Connick v. Thompson case. Last year, as the Court initially pondered that case, it sought a closer look, asking for the record of lower court proceedings. Not long after that file reached the Court in February of last year, the Justices granted review, on the sole question of whether a “single Brady violation” would justify a finding that the DA’s office had improperly failed to train its line prosecutors. Ultimately, the Court said no, but the dissenting Justices protested that there was far more than a single violation in the prosecution of John Thompson.

The Connick case was argued last October, and internal discussions began. In December, the case of Smith v. Louisiana, involving Juan Smith. was filed at the Court. After the state urged the Court not to hear that case, the Justices then called for a response by the state. That request was issued in February of this year, while draft opinions were still circulating in Connick v. Thompson; that case was then decided near the end of March, and nine days later the Justices sought the lower court record in Smith — an indication that they were then examining it as a potential sequel to Connick. Nothing further was done with the case until Monday, with the grant.

In a lengthy footnote in the petition in the Smith case, his lawyers ticked off a list of cases which, they asserted, showed that “the history of the Orleans Parish District Attorney’s Brady violations began before and continued after Mr. Smith’s trial.” One of the cases cited in that footnote was the case of John Thompson. That footnote also noted that, in the 1995 case of Kyles v. Whitley, the Supreme Court had overturned a conviction “because of the extent of the Brady violations by the Orleans Parish District Attorney’s Office.”

Smith’s petition also noted that, since 1981, there have been seven cases in which Louisiana death-row inmates have been exonerated, and four of the seven had been prosecuted in Orleans Parish “and all four of these cases…involved serious Brady violations.” The Thompson and Kyles cases were among the four. “Rather than heeding this Court’s directive in Kyles, the Orleans Parish DA’s office continued its pattern of deceit by concealing material, exculpatory evidence from the defense in the instant case,” the petition added.

Urging the Court to deny review, lawyers for the DA’s office said the complaints of Juan Smith’s lawyers “are unsubstantiated,” adding that “the mere aggregation of individually meritless suggestions cannot prove…a cognizable violation” of Brady, or of two other precedents cited by Smith’s counsel: Napue v. Illinois in 1959 and Giglio v. U.S. in 1972 (two other cases involving misconduct by prosecutors — withholding knowledge of false testimony in Napue, failing to disclose a promise of non-prosecution of a co-conspirator in return for his trial testimony in Giglio).

Smith’s lawyers, the prosecutors contended, were trying to bolster their case by proposing “that any conviction out of the Orleans Parish District Attorney’s Office mandates reversal.” None of the claimed violations of prosecutors’ legal duties, the brief in opposition argued, involved “material” evidence and none of it would have changed the outcome of the case: Smith’s convictions on multiple murder charges.

Smith’s conviction of five murders in New Orleans in 1995 led to a sentence of life in prison without a chance for parole. That is the conviction directly at issue in the new petition. The results of that trial were used as a factor in a second trial, for four other murders in New Orleans, also in 1995, and Smith was sentenced to death after conviction in that proceeding. In the earlier proceeding, the petition argued, prosecutors repeatedly withheld evidence from the defense — including a jailhouse confession by another man.

Smith’s petition for review in the Supreme Court raised two issues: whether the “cumulative effect” of the alleged violations by prosecutors would have changed the verdict against him, and whether state courts in Louisiana have violated Smith’s due process rights in rejecting his prosecutorial misconduct claims. The case will be heard and argued in the Court’s next Term, starting Oct. 3.

The Smith case was one of four new cases that the Court accepted on Monday for decision at its next Term. Here, in summary, are the issues in the other three:

** In Setser v. U.S. (10-7387): whether a federal judge may impose a federal criminal sentence to be served after the individual completes a state sentence that has not yet been imposed. The case, from Lubbock, Texas, involves drug crimes and a gun possession offense. The Justice Department agreed that judges do not have the power at issue, but the Department had urged the Court not to hear the appeal by Monroe Ace Setser. The Court nevertheless granted the case.

** In Hall, et al., v . U.S. (10-875): whether a family farmer who wants to sell out in order to deal with deep debt must complete the sale before filing for bankruptcy, in order to get a break on federal tax obligations, under a 2005 federal law. The case, from Arizona, involves a claim by a farming couple, Lynwood and Brenda Hall, that they should not have to pay the full amount of capital gains taxes on the sale of their 320-acre farm — a sale that occurred after they had filed for bankruptcy under the bankruptcy code’s Chapter 12, which applies to farmers and fishermen. The Justice Department urged the Court to hear the case to resolve a conflict on the issue among federal appeals courts.

** In Gonzalez v. Thaler (10-895): what date, on completion of direct review of a state criminal conviction, determines the beginning of a one-year period for filing a federal habeas challenge to a criminal conviction. The case involves the murder conviction in Texas of Raphael Ariazza Gonzalez. The Court, in granting review, rewrote the questions it will decide, to focus on whether the Fifth Circuit had the authority to allow the case to be appealed and decided, and whether the habeas petition was filed too late.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.